In the current push for national health insurance, expensive overuse of technology based on the defensive practice of medicine by doctors is being overlooked. Yet doctors often over-order tests and treatments for fear of missing a remote diagnosis. Doctors are afraid of being sued by the same aggressive trial lawyers who lobby Congress against real reform. Keep in mind that it isn’t just a dreaded error like removing the wrong kidney that motivates doctors to practice defensively, it is the fear of lawyers and having to meet with them as part and parcel of responding to arbitrary lawsuits. Doctors who have done nothing wrong can be targeted with frivolous suits that drag them into the lawyer’s office. The process of having your records scrutinized in an effort to determine how well you’ve documented things and if you’ve made errors can be instructive, but it can also be humiliating. This process can alter the way a doctor practices as he or she struggles to avoid the nightmare of legal exposure in future.

Though 98,000 people die in U.S. hospitals every year from medical mistakes, at the same time according to a recent Harvard study, 40 percent of malpractice lawsuits are not legitimate, though they lead to 15 percent of the money paid out. Often times the doctors who are sued did nothing wrong, while those who make mistakes too often escape retribution.

Most malpractice cases are won by doctors, but not before they endure the protracted painful process of meeting with lawyers. Many doctors quit medicine or become even more defensive and order more and more unnecessary tests as a result. I remember when the best urologist and one of the top cardiologists at my hospital quit practice abruptly because of extended lawsuits where they weren’t at fault.

On the defense side, lawyers may milk doctors for billable time, and on the plaintiff side, ambulance chasers thrive, creating and exploiting frivolous cases for profit. Many patients get unnecessary operations because of defensive medicine. C-section is on the rise and is vastly overdone because of doctors fearing lawsuits. There is a culture of fear that motivates doctors to practice defensively, which causes costs to skyrocket.

With the possible rationing of care that may occur in the name of cost control under an expanded system, malpractice could skyrocket as more and more tests and procedures are denied yet doctors continue to be blamed when something goes wrong. It is especially problematic that neither insurers nor the government have direct legal responsibility while at the same time turning down tests. Most doctors are too busy and too scared of being singled out to band together to protest this uneven system.

What is the solution? One solution is to create state review boards like Michigan or Tennessee to limit frivolous lawsuits. Doctors and lawyers can serve on these boards together and provide a barrier to nuisance suits. More peer review in the hospitals is also a good idea, regular mortality and morbidity conferences where doctors behavior is examined without the direct fear of lawsuits.

Capping pain and suffering awards would seem like a simple enough solution, but some patients truly deserve a high reward if they’ve been badly mistreated by a physician (as when the wrong organ is removed or a diagnosis is blatantly missed). A better initial approach is to target nuisance suits for destruction.

It is estimated that tort reform can lead to an initial savings of 2% on health care costs, without even considering the billions of dollars that will be saved by decreasing the defensive practice of medicine (based on overuse). But even with tort reform, the current plans for health insurance reform combined with decreased reimbursements to hospitals and doctors will lead to more and more patients being seen in shorter periods of time. This will lead to more and more medical mistakes, and more and more malpractice.

There hasn’t been much of a push yet to combine tort reform with the current health insurance reform initiative being considered by Congress. This could change. The Democrats could decide to add some tort reform (probably Caps to pain and suffering) as a sweetener to a bitter pill (or bill). This might cause more physicians to support the current health reform, but would do nothing to correct the larger problem of physician dissatisfaction, overwork, attrition, and scarcity, all of which lead to medical mistakes.

Plus, simply capping pain and suffering is not a guarantee that doctors will see their liability insurance premiums lowered. In California in the 1980s, when a cap on pain of suffering to $250,000 was first initiated, there was no overall savings to physicians. Instead, the insurance companies made more profits. It took an additional law to ensure that the savings was transferred to physicians in terms of lower premiums.

It is the current insurance-oriented climate for practicing medicine that must be changed before doctors (and their patients) will reach any kind of comfort level or be able to cut costs in a reasonable way. Insurance of both kinds (private and public) is the problem, not the solution. Costs spiral upward because of doctors’ fear of malpractice and rush to see more and more patients in a short period of time amid shrinking reimbursements. The easiest way to do this if you’re a primary care doctor is to quickly refer a patient to a specialist of for an expensive test, jacking up costs. At the same time, patients are inclined to overuse their health insurance because they don’t pay for each procedure or as many have put it, because patients don’t have any “skin in the game.”

Tort reform is essential and must include not only caps on pain and suffering and reflected decreases in liability premiums, but also a way to ferret out nuisance suites. I am in favor of more peer review in the hospitals as well as a lawyer and doctor staffed board in every state to review claims before they are brought. I strongly believe that private insurance companies as well as the government (Medicare and Medicaid), should incur liability themselves for tests they decline.

But I do not think that any of this should be done as a way to manipulate physicians to support a kind of health reform that is not in our best interest, or in the best interest of our patients.